BOTHWELL V LONDON HEALTH SCIENCES CENTRE

Mental injuries can be as devastating as physical injuries to the people who experience them, but they are not as easily recognized as injuries by the courts. By law, individuals need to meet a high threshold to prove a compensable mental injury, which includes demonstrating impairment of cognitive functions or daily life. In general, this means that feelings of anger and frustration are not compensable mental injuries.

To put this in context, consider the following vignette:

You are driving home from work and enter an intersection when the light is green. Out of nowhere, another car comes rushing through the red light and crashes into you. You survive, but receive a concussion, several broken bones, and spinal injuries. Each of these injuries severely impact your ability to work and live your life. You also feel extreme frustration and anger that this happened to you through no fault of your own and because of another person's reckless actions. These feelings are overwhelming. For this reason, you have become short and irritable with many family and friends and have alienated some of them. You feel as though these feelings have had as much of an impact on you as your physical injuries because of their deleterious effects. You wonder, "can I be compensated for these types of injuries?"

The question of whether a person can be compensated for mental injuries together with physical injuries was addressed in the recent Ontario Court of Appeal decision Bothwell v London Health Sciences Centre.1 In Bothwell, the court clarified what is required for a compensable mental injury and whether persistent feelings of anger and frustration qualify. In essence, for a mental injury to be legally recognized as compensable, it needs to be serious and enduring, surpassing the common irritations, worries, and fears that are part of everyday life. Emotional reactions beneath this threshold — such as distress, aversion, anxiety, or agitation — are not legally recognized as compensable mental injuries.

Facts of the Bothwell Case

Mr. Craig Bothwell suffers from Crohn's disease. In September 2011, Mr. Bothwell went to London Health Sciences Centre, Victoria Hospital to undergo a surgical procedure connected to his condition. Following the procedure, his doctor ordered that he be given a blood volumizer, but a nurse mistakenly administered an anticoagulant instead. As a consequence, Mr. Bothwell experienced internal bleeding and required emergency surgery. He would also undergo several more surgeries to repair further damage.

In addition to his physical injuries, Mr. Bothwell felt frustrated and angry about his experience; i.e., that this serious injury happened to him through no fault of his own and because of another person's carelessness.

The Test for Compensable Mental Injuries

Compensable mental injuries were first recognized in Mustapha v Culligan of Canada by the Supreme Court of Canada in 2008.2 Here, the injury must be "serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept."3 In contrast, "[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury."4

Saadati v Moorhead reaffirmed this test and emphasized the difference between "mental injury" and "mere psychological upset."5 The Court laid out several factors to consider when assessing whether a claimant has demonstrated a mental injury and not simply psychological upset, including:

  • the impairment on the claimant's cognitive function and daily activities;
  • the length of such impairment;
  • the nature and effect of any treatment on the impairment;
  • expert evidence or a psychiatric diagnosis; and
  • any other evidence produced by the claimant which shows the presence of a mental injury on a balance of probabilities.

In Saadati, Mr. Saadati was involved in five car accidents and the second caused him psychological injuries, including personality change and cognitive difficulties like slow speech. These changes led to a deterioration in Mr. Saadati's relationship with his family and friends. As such, the Court found that these injuries constituted a "serious and prolonged disruption that transcended ordinary emotional upset or distress."6

Application in the Bothwell Case

At trial,7 Mr. Bothwell claimed that he experienced a number of psychological injuries in addition to worsening physical symptoms of his Crohn's disease — including nightmares, emotional distress, anxiety, and depression. At trial, the court found that the error indeed caused Mr. Bothwell's psychological upset and that Mr. Bothwell's feelings of persistent anger and frustration met the standard for a compensable mental injury established by law.

The Ontario Court of Appeal overturned the trial judge's ruling. Here, the Court interpreted Saadati as laying out two steps to distinguish a mental injury from mere psychological upset:

  • the claimant's psychological upset; and
  • the impairment of the claimant's cognitive functions and daily life from that upset, the length of such impairment, and the nature and effect of any treatment sought.

The Court found that the trial judge failed to consider the second element:

...the trial judge failed to consider the degree of disturbance Mr. Bothwell experienced as a result of his psychological upset. That is, he failed to consider what impact Mr. Bothwell's continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Mr. Bothwell sought treatment for those feelings. These failures caused the trial judge to fail to determine whether Mr. Bothwell's continuing psychological upset met the requisite degree of disturbance to become a compensable mental injury.8

The Court then examined whether Mr. Bothwell met this test and found that his evidence fell short. The Court saw no indication that Mr. Bothwell's feelings of frustration and anger following the incident impaired his cognitive functions or daily life; i.e., he continued to work as a paramedic and participate in his family life as a husband and father. The Court also highlighted the importance of obtaining expert evidence — while the law does not require expert evidence to find a compensable mental injury, claimants run the risk of falling short of proving their evidentiary burden without it. The Court also clarified that while the gravity of the experience may be a relevant factor, the Saadati factors still must be considered and applied. As such, Mr. Bothwell's persistent feelings of frustration and anger did not constitute a compensable mental injury.

Summary and Conclusion

Mental injuries can be equally, if not more, devastating than physical injuries. Moreover, unlike a wound or broken bone, mental injuries are not often readily apparent to the courts. As seen in Bothwell, there is a very high threshold that claimants must meet to prove a compensable mental injury. Even persistent feelings of anger and frustration will not meet the threshold unless claimants cannot also prove that these feelings impaired their cognitive functions or daily life and activities. Moreover, while not required, expert evidence of mental injury can be integral in establishing a valid claim.

Footnotes

1. Bothwell v London Health Sciences Centre, 2023 ONCA 323 [Bothwell, ONCA].

2. 2008 SCC 27.

3. Ibid at para 9.

4. Ibid at para 9.

5. 2017 SCC 28 at para 37 [emphasis in original].

6. Ibid, at para 40.

7. Bothwell v London Health Sciences Centre et al, 2021 ONSC 6755.

8. Bothwell ONCA at para 34

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